Unfair Termination in Kenya: Employee Rights, Remedies & Legal Guide (2025)

Unfair termination of employment is a significant issue in Kenya's labor market, affecting both employees and employers. The Employment Act, 2007, provides clear legal provisions on fair dismissal, employer obligations, and employee rights. This article explores unfair termination, legal remedies, and landmark case law decisions, offering guidance for legal practitioners, HR professionals, and employees.

1.    Legal Definition of Unfair Termination

Unfair termination occurs when an employer dismisses an employee without just cause or due process. Section 45 of the Employment Act, 2007 states that:

"No employer shall terminate the employment of an employee unfairly. A termination is unfair if the employer fails to prove that it was based on a valid and fair reason related to the employee’s conduct, capacity, or compatibility, or based on the employer’s operational requirements and that it was conducted in accordance with fair procedure."

2.    Key Grounds of Unfair Termination

An employer must prove that termination was for a fair and valid reason wa given. The following are the most common grounds leading to claims of unfair dismissal:

• Dismissal without notice or cause: Employers must provide reasonable cause for termination as per Section 41 of the Act.

• Lack of due process: Employees must be given a chance to respond to allegations before termination.

• Discriminatory dismissal: Termination based on race, gender, disability, or other protected grounds is prohibited under Article 27 of the Constitution of Kenya, 2010.

• Retaliatory termination: Employees cannot be dismissed for whistleblowing or asserting their rights under labor laws.

3.    Procedural Fairness in Termination

Under Section 41 of the Employment Act, 2007, an employer must:

1. Give notice of intended termination – The employee must be informed of the allegations against them.

2. Provide an opportunity to respond – The employee has the right to a hearing before termination.

3. Allow representation – The employee may be accompanied by a colleague or union representative.

4. Issue a written termination notice – The reasons for dismissal must be communicated in writing.

Failure to follow these steps renders the termination unlawful, leading to possible legal claims against the employer.

Legal Remedies for Unfair Termination

Employees who have been unfairly dismissed can seek redress through the Employment and Labour Relations Court (ELRC). Available remedies include:

1. Compensation for Unfair Dismissal

Section 49 of the Employment Act, 2007 provides that a wrongfully dismissed employee can receive up to 12 months' salary as compensation.

2. Reinstatement

The ELRC may order an employer to reinstate the employee to their former position without loss of benefits.

3. Payment of Terminal Dues

Unpaid salary, leave days, service pay, and notice pay must be settled upon termination.

Court Cases on Unfair Termination in Kenya

1. Mary Chemweno Kiptui v Kenya Pipeline Company Limited (2014)

• The court ruled that failure to provide an employee with a fair hearing before dismissal violated Section 41 of the Employment Act.

• The employer was ordered to pay 12 months' compensation.

  
  

2. Kenfreight (E.A) Limited v Benson K. Nguti (2016) eKLR

• The Supreme Court held that termination based on unfair grounds, such as personal grievances, is unlawful.

• The employee was awarded compensation and notice pay.

  
  

3. Walter Ogal Anuro v Teachers Service Commission (2013) eKLR

• The ELRC emphasized that both substantive and procedural fairness are required for a lawful dismissal.

  
  

Best Practices for Employers to Avoid Unfair Termination Claims

To mitigate legal risks, employers should:

• Follow due process as outlined in the Employment Act.

• Maintain accurate employee records, including performance reviews and warnings.

• Provide clear employment contracts specifying termination procedures.

• Conduct fair disciplinary hearings and allow representation.

Conclusion

Unfair termination of employment in Kenya remains a pressing issue that requires strict compliance with the Employment Act, 2007 and judicial precedents. Employees must be aware of their rights, while employers should implement best practices to avoid legal disputes. If you are facing unfair dismissal, seeking legal advice or filing a claim at the Employment and Labour Relations Court can help secure justice.

If you believe you have been unfairly dismissed or need legal advice on employment matters, Kiplagat & Kidui Advocates is here to help. Our experienced employment law team provides expert legal representation to ensure your rights are protected.

📩 Email: info@kiplagatkiduiadvocates.co.ke

📞 Call/WhatsApp: 0708 378 949 or 0727 663 221